Jul 12, 2011

Employers Exploit Broken Visa System

The US employment visa (H1B) and employment based green card system is severely broken. It gives undue advantage and power to employers. And given the insufficient visibility and scrutiny in this system, employers often take advantage of this when dealing with immigrant workers. I have been on a temporary visa now in the US for 12 years and have personally experienced many of the consequences of this power imbalance.

To give some background, the USCIS requires that for most work visas the process be initiated and managed by the employer. Typically, the employer has to prove inability to find American talent and then make a case to hire immigrants. This is applicable for various temporary visas (H1B, L1) and also for permanent visas (employment based green cards). And there is a legal requirement that employers pay immigrants on par with Americans so that an American worker is not disadvantaged when competing for the same job with an immigrant.

Now this system could have worked had the visa processes and timelines were transparent, trackable and consistent. But the quotas on these visas run out so quickly resulting in a huge backlog for many of these visas. Consequently, employers get disproportionate power over their employees.

Here are some specific ways in which it screws employees who are at the mercy of their employer to file their visas and green cards.

* Negotiation tactic: HR often uses the argument of immigration paper work as a negotiation tactic. "We can only offer you this because we also have to bear the costs of your visa". Now this argument is illegal and can get companies into severe trouble. But.. it still happens all the time. Consequently immigrants often end up with a poorer compensation or job grade during negotiations. Further, it also hurts American employees as employers find it attractive to hire immigrant workers for cheaper.

* Arbitrary rules: Employers start setting arbitrary rules requiring immigrant employees to wait for 6 months or 12 months before applying for the green card. This is great for the employer because no matter what happens the immigrant is likely to stick around waiting out for their green card to get started.

* Unfair promotions and pay raises: Now that the immigrant employee is locked-in there is not much incentive for the employer to promote them or adjust their pay according to their contribution. I have personally witnessed this on various occasions. It doesn't seem there's a law protecting the immigrant employee on this. And even if there is a law, given there's no objective way to track this, it's quite easy for an employer to manipulate by saying 'they are only performing at a lower level'.

* Conservative approach: HR often forgets that they have a dual role. While they are supposed to protect the company, they forget to be an ally for the employee. As a result, they end up taking the most conservative approach when filing for any visa just because there's a 0.001% chance that the company might get into trouble. This results in further delays for employees.

* Severe layoff impact - scenario 1: And let's say the employer is going through tough times, nothing stops them from laying off immigrants. The problems for immigrants are now lot more complicated. Simply put, they have to leave the country. The visa rules are very fuzzy about the legal duration one can stay in the country after being laid off. So they are left with little or no time to find another job. And don't forget that the new employer has to agree to file for their visa again!

* Severe layoff impact - scenario 2: Even if the immigrant does not lose his/her job, layoffs can impact visa processing quite seriously. Generally, employers will often stop any visa paper work. The argument is that if we are laying off, it's risky to file for a visa or a green card. The missing point is that the person laid off can not potentially fill this job for technical and practical reasons. Could you tell an immigrant employee 'Hey Joe (American) is getting laid off, but you are an immigrant so stop doing what you are doing and let Joe take over'?

* Affects employee motivation: As a result of the above lock-ins, employees are sometimes stuck in jobs they don't enjoy. They end up with low motivation levels, hate their job and their bosses. This impacts productivity and surprisingly employers don't seem to notice. And honestly, bosses hate to deal with employee's immigration stuff, it's quite unrewarding.

* Improper treatment: Finally, employers often make us literally beg for any immigration paper work even if it's a completely required activity (e.g. H1B refiling, green card filing). Employees tend to be very careful not pissing off HR fearing that they can play hard ball when the time comes to renew visas or file the green card. This is quite demeaning and my self-respect has been hurt on more than a few occasions by having to put up with some bureaucratic BS.

Overall this is a very unfair system for the immigrant employee. Employers have disproportionate power and they end up screwing up immigrants all the time. The more effective system would be a point-based system that is in place in the UK, Canada, Australia and some other countries. Employees are qualified based on the number of points they can accumulate either because of their advanced degree or years of experience or their specialty. This system is a lot more objective and evens out the power imbalance between the employer and the employee.

I have personally been impacted by this and am still waiting in the green card queue even after 12 years in this country! And to put it mildly, it's extremely frustrating.